Court of Appeal:
By a MetNews Staff Writer
The Court of Appeal for this district, in a 2-1 decision, has reversed an order terminating the parental rights of a street gang member and recidivist who was sentenced to 16 years in prison for dissuading a witness from testifying through force or threats of violence, with a dissenter protesting that compelling a further delay in the placement process is unfair to the young children.
Justice Martin J. Tangeman authored the unpublished majority opinion for Div. Six, in which Presiding Justice Arthur Gilbert joined. Justice Kenneth Yegan wrote the dissent. Tangeman’s opinion reverses Santa Barbara Superior Court Judge Arthur A. Garcia’s order snipping the ties between inmate “S.R.” and the two children he might have fathered.
Although he was listed on their birth certificates as the father, he and their mother, S.H., were not married, and the man was referred to throughout the proceedings as the “alleged” father. The Court of Appeal affirmed the order ending the parental rights of the mother, a heroin addict.
The father was criminally charged in 2014. At the time of the sentencing, the children were ages 15 months and 2.
S.H. told the welfare services department in connection with the dependency proceedings, instituted in March 2020, that she has not seen S.R. “in nearly six years” and that the children “do not have an established relationship” with him.
Tangeman quoted a June 27, 2002 opinion of the Fourth District’s Div. Three by Acting Presiding Justice William W. Bedsworth as saying:
“There is no ‘Go to jail, lose your child’ rule in California.”
The Div. Six justice noted that S.R. had expressed a desire to attend the jurisdictional/dispositional hearing but was not permitted to do so in light of the COVID-19 pandemic. The jurist said that both asserted fathers and presumed fathers have a right to attend such hearings, even if incarcerated, and commented that S.R.’s “absence violated his right to due process, and requires reversal unless the error was harmless.”
It was not harmless, he declared. Although S.R. was represented at the hearings by counsel, Santa Maria attorney Erin Moore, the court did not obtain his personal waiver of a contested jurisdictional hearing, deciding the matter based on department reports.
“On this record,” Tangeman wrote, “it is not clear that Father would have been denied reunification services if he had been present and afforded his right to a contested jurisdictional hearing.”
“The children here were placed with grandparents. Had Father been given the opportunity to contest jurisdiction, he could have attempted to show that his incarceration did not constitute failure to protect the children or leave them without support. But the court ‘provided no hearing whatsoever.’ ”
Tangeman also faulted Garcia for not inquiring into any basis S.R. might have for asserting, if he does, that he is a “presumed” rather than an “asserted” father. The former status which would accord him broader rights.
In light of the errors, Tangeman said, S.R. was “denied his fundamental due process rights.”
Yegan agreed with the affirmance of Garcia’s order terminating the mother’s parental ties with the children, but dissented as to overturning the order that also ended S.R.’s rights. He remarked:
“Given Father’s non-relationship with the two children, placement with the maternal grandparents was about the best outcome that he could have hoped for.”
He pointed out that at the time of his sentencing, S.R. “had no ‘established relationship’ with the children,” continuing:
“He was, and is, a stranger to them. He had never ‘unified’ with them. It appears to me that absent ‘unification,’ there can be no ‘reunification.’ And, of course, this begs the question of just how there could be ‘reunification’ in the confines of the California state prison system.
“Practically speaking, a 16-year prison sentence is fundamentally incompatible with raising children. Childhood is fleeting and the children cannot wait for Father to be released from prison, even if he is released before serving his full term.”
The dissenter added:
“There is no miscarriage of justice here. Father has no realistic hope of “reunifying” with the children because he will not be released from prison before their childhoods are over. To now vacate placement and start the dependency proceedings anew, giving Father procedural rights, is, on this record, a disservice to the children.”
In a rejoinder at the end of his opinion, Tangeman said:
“Although it is an unfortunate consequence that permanency will be delayed, when due process is the issue it is not for us to speculate about the outcome. The prognostication of the dissent may turn out to be correct, but this is not a proper rationale to deny Father his day in court. Assumptions are an unacceptable substitute for due process.”
The case is In re M.R., B308711.
S.R. was represented on appeal by Pasadena attorney Deborah Dentler. Santa Barbara Deputy County Counsel Lisa A. Rothstein acted for the department.
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